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Gary Hicks talks public trust and transparency as he retires from the NH Supreme Court

Two men sit in chairs talking to each other, facing the camera. Two mics with NHPR flags on them and recording equipment is in front of them on a table.
Jackie Harris
/
NHPR
NHPR’s Morning Edition host Rick Ganley sat down with former NH Supreme Court Justice Gary Hicks on his last day in office.

Gary Hicks was appointed to the New Hampshire Supreme Court in 2006 making him the longest serving justice on the current court. That was until last week when Hicks turned 70, the mandatory retirement age for judges in the state.

During his tenure, the state Supreme Court has issued high profile decisions, including its overruling of Fenniman, the court's previous decision that allowed the disciplinary records of public employees, like law enforcement, to be kept private.

NHPR’s Morning Edition host Rick Ganley sat down with Hicks on his last day in office to reflect on his time on the bench.

Editor's note: This is a partial transcript that has been lightly edited for length and clarity. You can listen to the full interview above.


Transcript

We're recording this interview in the library of the New Hampshire Supreme Court. It's a building that you've worked in now for more than 17 years. And I'd like to start by asking, what do you hope your legacy will be when you look back?

I think that's the right question for any judge, especially an appellate judge. And what I hope it will be is that people will read my work and will say, 'I think he was right.' Or more appropriately, 'All five of them were right, and it's nice that Justice Hicks got to author the decision.' That's really what I hope. Outside of the law, I'd like my legacy to be that I've helped young lawyers along in their career and their development. It's a point of personal pride.

In recent years, some of the biggest decisions this court has made have had to do with the state's Right to Know law. The Laurie List may be the most high profile example of that. That's the list containing the names of police with possible credibility issues that was released last year. What was the court's thinking in several of these rulings that provided more transparency? Why issue these landmark rulings now?

Without betraying any confidences or confidentiality in the process, I would have to say that the court's thinking was that the initial decision on this subject, the so-called Fenniman case, was probably wrongfully decided, and all of us spent a lot of time researching the issue. And as you know, five of us come from completely different backgrounds and completely different philosophies, but we all knew that the Fenniman case was probably wrong. And if anyone would go back and read it, it clearly is not a product of measured jurisprudence, even from the get go. So what took so long? I can't say. The law deliberately moves slowly, as it should, but I'm confident that the new line of cases on the Right to Know and public's access to public information that's paid for by public dollars, is the right way to go. So you're right, it's a bit revolutionary.

And we're seeing more of these cases bubble up through the courts, aren't we?

Yes. A lot of it has to do with the level of secrecy that was around for so long. It takes a while to peel the exterior off of this, and I don't think any public servant really believes that all of their personnel files are going to be kept confidential. That would be crazy. And being in public service, I'm one of them. I understand that there's probably things that the public would have a right to know.

One of the biggest issues facing New Hampshire's legal system, especially during the pandemic, was a shortage of lawyers and public defenders for indigent defendants. How can the state solve that problem? Is it simply a matter of money? Is it much more complicated than that?

I think it's probably a little more complicated, but the addition of more money is at the foundation of it. I think that's true. These jobs in the public defender realm are attractive to a certain type of law student, and many times the best law students in the country will come to New Hampshire because we historically have a great program, but it also involves management of that program. And I'm very confident that we have now in place a very, very highly skilled manager, and she can make the case to the funding agencies that the better lawyers we have, the better it is for the entire state. And I'm sure it's headed in the right direction. It was in great shape when I started. You look around and many of those public defenders are now judges or successful lawyers in other areas. We've always been proud of the public defender program in New Hampshire, and I'm glad we can be again.

Your named replacement, nominated by Governor Sununu, Melissa Countway, will soon come up for a vote before the Executive Council. What advice would you give her if she was confirmed?

Well, I intend to ask her out to lunch to see if I can give her some advice. I've spoken with her a couple of times because I'm thrilled that she was picked to be my replacement, absolutely thrilled. She's a solid lawyer, a solid thinker. And one of the things we do on the Supreme Court is we kind of oversee what all the other judges do. So I oversee her work, and it's been spot on ever since she began working in the circuit court. I would give her the following advice, and it sounds a little abrupt, but I would keep my mouth shut for a while. That's my personality anyway, and I didn't want to force my personality on her.

But I'd be quiet for a while until you are very comfortable in the surroundings because it's different. It's very unique, this job. And very few people in the universe get the chance, the privilege of being an appellate [judge]. So I would tell her to sit back and listen for a while, and then I would tell her to never, ever hesitate to speak, sharply if necessary, on an important point.

We're recording this interview on your 70th birthday, your last official day here on the court. New Hampshire voters next November will be asked if they want to change the state constitution to up that judicial retirement age to 75. What do you think about that?

Well, I think two things about that, Rick. One is why did they wait so long so it wouldn't affect me? Should I be taking that personally? [laughs] But anyway, I think it's a great idea. I mean, I certainly will vote for it. If you were here earlier, we had a kind of a reunion of judges and all of them Judge Galway, Judge Conboy, Judge Broderick and I can't remember who else. Judge Lynn. [They] were all here. Sharp as tacks intellectually, and they could still be sitting on cases and do the same wonderful work and the same hard work that they did before they turned 70. So I'm in favor of it. I'll vote for it.

But you've been around New Hampshire long enough as I have to know that it hasn't fared very well. And the ultimate determination seems to be people say, 'Well, people like Hicks, he's 70 years old. Maybe he should give the younger people a chance.' I'm all in favor of that. But the limitation [has] been in place since 1784, I think. And being 70 today is a little bit different, being 75 today is a little bit different. But we'll see. I hope so.

The US Supreme Court has been at the center of ongoing controversy over ethics disclosures. Relationships between justices and wealthy or politically connected individuals. Do you believe that the state Supreme Court on which you have served has safeguards in place to prevent something similar?

Yeah, and I don't mean to be derogatory, but we also have a great deal of common sense, and I'll just leave it at that. Those particular fact patterns would never have occurred on any court that I've sat on while I've been here.

Why?

We read the Code of Judicial Conduct often around this table. And if there's a question, someone will say, 'Okay, I've been invited to this. Do you think I can go?' And then someone will go to the bookshelf and pick out the Code of Judicial Conduct, and we'll talk about it. And if there's even a slight chance of the appearance of impropriety, the answer is no. We won't do it. It's mind boggling to me that that's an issue on the federal level.

Broadly speaking, do you worry about the public's lack of faith?

Yeah, yeah I do. I think that what the public sees of the United States Supreme Court justices behavior inevitably spills over. And I'm not sure that people really think in their mind, 'That's the court that Gary Hicks sits on, and that's ok.' I think we all take a hit when even one judge makes a mistake like that. I'm sure Justice Roberts stays up at night because of it because it's going to be called the Roberts Court.

National political issues [are] always being pushed to state courts now -- voting rights, gerrymandering, abortion. State courts [are] increasingly being asked to weigh in on these issues. Do you think state courts are able to handle that in a way that doesn't inflame the partisan divide in this country?

That's a great question. I don't know, and I see the risk. And that's one of the reasons I wish I was still here, because as you have pointed out, the federal courts are saying, 'Well, we don't know what the answer is. We're not sure what to do, but I bet the state courts can decide.' I've never really believed in federal preemption anyway, so I'd like to have another crack at some of these tough issues that are coming our way. I'm not worried about New Hampshire getting involved in the political sway, in part because of the way we select judges. We're not elected. We don't run for office. But in those states where you do, I think it's a real problem. I think politics will likely trump common sense in those states. I've seen it.

Well, how could the Supreme Court, at the federal level or at a state level like New Hampshire, avoid those political divisions?

The only way the court can maintain its credibility is to be very open, honest and candid in its writings. That's our work product. And if the public reads our decisions – a lot of smart people do like yourself – when you read those decisions and they don't ring logical, that's when you really get hurt as an institution. I'm not worried about this court. I'm not worried about it at all.

But I am worried about other courts. And, frankly, I'm most familiar with the New England courts. They're very solid and not apt to bend toward a political wind. So I'm glad we live here.

One last question for you. So you grew up in Colebrook? Worked at your dad's hardware store?

Hick's Hardware, indeed. That's a plug, by the way.

It's still there?

It's still there. It's run by my cousins.

What did you learn from working in the hardware store?

Oh a ton. Looking back on it, I credit almost everything I'd done with the experience I had at the hardware store, which was dealing with real people with real problems, people of varying degrees of experience, and some that were far more experienced in an area than I was. And when they would come in the store, your job was to wait on them and sell them something, or perform some work for them that could help them out. It was just a great experience. We worked hard, too. So that's where the hard work came in. And I never had a problem with it after that. Working in a hardware store is probably my dream job again.

Jackie Harris is the Morning Edition Producer at NHPR. She first joined NHPR in 2021 as the Morning Edition Fellow.

For many radio listeners throughout New Hampshire, Rick Ganley is the first voice they hear each weekday morning, bringing them up to speed on news developments overnight and starting their day off with the latest information.
Todd started as a news correspondent with NHPR in 2009. He spent nearly a decade in the non-profit world, working with international development agencies and anti-poverty groups. He holds a master’s degree in public administration from Columbia University.
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